Mister v. City of Kansas , 1885 Mo. App. LEXIS 324 ( 1885 )

Opinion by

Hall, J.

1. The first and the material question for our determination is, what is the meaning and what is the effect of the above section of defendant’s charter as applied to the • facts of this case. The meaning of that section is unmistakable. It clearly, in substance, provides : 1st. That defendant’s common council shall not' appropriate money for any purpose whatever in excess of the revenue of the fiscal year. 2nd. That said council shall make no such appropriation in excess of the revenue of the fiscal year actually collected and in the treasury at the time of the appropriation. 3rd. That neither the common council nor any officer shall have the power to bind defendant by any contract or any act to pay money until a definite amount of money shall have first been appropriated; and 4th, that the maximum limit of defendant’s liability, in all cases, on account of any such contract or act, shall be the amount of such appropriation.

The language of said section is clear and unambiguous. By it no exception is made, but its provisions apply alike to all contracts and all acts made or done by any of defendant’s officers. We cannot construe said section so as to add thereto a provision, in the nature of an exception, which the legislature did not see fit to insert. “-This, as is well settled by an unbroken current of authority, is not permissible where the language of the law is clear and unambiguous, as is the case here, except -where to give effect to the language used, according to its literal terms, would lead to a gross absurdity or manifest wrong, or inconsistency, which courts will not impute to a legislative body.” Prince v. City of Quincy, 105 Ill. 138. The plaintiff contends that “it was not possible to ascertain the cost of this work, except approximately, and this was done, until after it should be completed and measured and the reckoning made from the prices per cubic yard stipulated for by the contract;” and, therefore, the provisions of said section do not apply to this contract in suit. In support of this contention the plaintiff has cited the cases of Harlem Gas Co. v. Mayor, etc., 33 N. Y. 309; Nebraska City v. Gas Co., 9 Neb. 339; and Hitchcock v. Galveston, 96 U. S. 341. In the case of Gas Co. v. Mayor, etc., supra, the provisions of the law were “ whenever any work is necessary to be done to complete or perfect a particular job, or any supplies are needful for any particular purpose, which job was to be undertaken or supplies furnished for the corporation, and the several parts of said work or supplies shall together involve the expenditure of more than $250.00, the same shall be by contract, under such regulations concerning it, as shall be established by ordinance of the common council, unless by a vote of three-fourths of the members elected it shall be ordered otherwise ; ” and “all contracts by or in behalf of the mayor, aider-man, and commonalty of the city of New York, shall be awarded to the lowest bidder for the same, respectively, with adequate security, and every such contract shall be deemed confirmed in and to such lowest bidder at the time of opening the bids, estimates, or proposals therefor, and such contract shall be forthwith duly executed in the name of the mayor,- alderman, and commonalty, by the head of the department having cognizance thereof, with such lowest bidder.” In that case two opinions, not dissenting, but concurring opinions, were delivered, one by Porter, J., the other by Brown, J.

Porter, J., said: “The contract in question is not within the legitimate scope and intent of these provisions in the amended charter. They were designed to regulate contracts for the performance of work and the purchase of supplies. The gas was manufactured by the company for itself, and not for the corporation. It never became the property of the city by purchase, in the sense applicable to ordinary supplies. * . '* * To extend the provisions of this section of the amended charter to such a case in disregard of the manifest purpose of the enactment, would involve a departure from the familiar rule that general words are to be restrained, in their application, to the subject-matter in reference to which they are employed.”

Brown, J., said: “In the case we are considering, the case shows that the plaintiff’s mains and conductors were the only things of the kind laid down in the streets of the city, north of the center of 79th street, and that there was no other individual, company or corporation having the ability and the means to supply the city with illuminating gas to light the streets. Knowing this, the common" council, in granting to the Harlem company the privilege of occupying the streets with their mains, did so upon condition that the latter should supply the streets of the city with gas for street purposes, within two years from the time of the passage of the resolutions. This condition is wholly inconsistent with the idea of competition from several bidders, and the contract awarded to him whose offer was best for the city, x- x- x->;

In the case of Nebraska City v. Gas Co., supra, it is said: “This section has no application to contracts of this description, but to those respecting streets, bridges, or other work or improvement to be made for or owned by the city.” Its language on this subject is : “ Before, the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council, and no contract shall be entered into for any work or improvement for a price exceeding such estimate, etc. Now, all that was contracted for here was the supplying the city with light, not for the erection of gas works to be owned by the city. .And the contract was made with the company, which had the exclusive right to that business within the city, the only source from which such light could have been obtained. Clearly this section of the statute has no application here, and the argument bas'ed upon it falls to the ground.”

In. Hitchcock v. Galveston, supra, the court said: “Another objection to the validity of the contract, urged by the city, is founded upon a provision of the charter, that the council shall not borrow for general purposes more than $50,000, and it is said the contract, if valid, creates a liability of the city exceeding that sum. * * * For these reasons, we are of opinion that the limitation upon the power of the council to borrow for general purposes did not make the agreement with the plaintiffs invalid.”

The agreement in suit was a contract for filling, grading, curbing and paving certain parts of certain streets of the city of G-alveston,

It will thus be seen that the cases cited by plaintiff are not in point and do not support his contention.

The provisions of said section apply to and include the contract in suit, unless to so hold would lead to, “a gross absurdity or manifest wrong or inconsistency,” such as we cannot impute to the legislature. How such holding by us would or could lead to such a result we cannot perceive. Said action does not contemplate that the amount of the appropriation shall be the exact amount expended; but on the contrary it provides that the amount appropriated shall be only the maximum amount expended. It would seem that the section was enacted with a view to such a case as the plaintiff contends this case is, a case in which only an approximate estimate of the cost of the proposed work could be made.

One of the prime objects contemplated by the legislature in the enactment of the section of the defendant’s charter under discussion, was to prevent the city’s expenditures for any year exceeding the revenues of that year. This object is made perfectly clear in the beginning of the section. How can that object be accomplished, and the plaintiff ’ s position be maintained % If no appropriation need be made in advance of making such contracts as the contract in suit is claimed to be, where the exact amount of expenditure thereunder can not be ascertained until the contract is completed, how can the officers of defendant manage to keep the expenses for each year within its revenues % If the amount of liability incurred by the defendant by reason of such contracts cannot be known until the work shall be all done, how can defendant know what contracts she may enter into, with a given amount of money only with which to pay on account thereof ? The exact amount of the liability need not be appropriated, the approximate amount may be appropriated by the common council.

The council should, within the limits of prudence, appropriate an amount sufficient to meet all the costs of a contract proposed by the city, where such costs are contingent and to an extent unknown. A contractor should not enter into a contract with the city until an amount has been appropriated by the common council sufficient in his opinion to pay for all the work to be done by him under the contract.

The contract is not made first and then appropriation by the common council to cover the cost incurred by the contract. But first an appropriation is made to cover the expense of a proposed work. This appropriation is necessarily approximate, because, after it is made, the contract is let to the lowest bidder. The act of appropriation does not require or even contemplate the making of a contract for the exact amount of the appropriation ; for, if so, why the competition among bidders, and the letting of the contract to the lowest bidder. The only effect of the act of appropriation is to prevent the making of a contract imposing on the city a liability in excess of the amount appropriated. The contract must be and can only be made subject to the appropriation.

We are clearly of the opinion that the said section applies to and controls the contract in suit, construed as it is by plaintiff.

But is the construction of the contract, made by the plaintiff, correct 1

The evidence does not show that it was impossible, ■or even difficult for the defendant’s city engineer to make an exact estimate of the cost of the contract work, to be done in accordance with the plans and specifications thereto attached, and the prices therein fixed.

But, on the contrary, the plaintiff’s only witness testified that he made an estimate of such cost, based, as we presume, on such plans and specifications, without regard to any fixed prices, and that such estimate was for $12,000 for the masonry alone. But the plaintiff contends, as we understand him, that the contract rendered it impossible for any one to estimate the exact cost •of the work by stipulating that the defendant’s “engineer may, at any time, add to or lessen the thickness of ■said wall,” because it was impossible for any one to know what changes the engineer might make. The evidence in this case does not show that any such changes were made, but the inference to be drawn from the evidence is -that no such changes were made. To hold that such a provision in a contract prevents the said section from applying to it, would be to annul and repeal such section.

We hold, then, that the said section applies with full force to the contract in suit.

2. It follows that, as the defendant has paid to plaintiff the full amount appropriated, she is not liable for any balance in excess of such amount. McDonnel v. Mayor, 68 N. Y. 23; Goodrich City of Detroit, 12 Mich. 279 ; Wallace v. Mayor of San Jose, 29 Cal. 188 ; Wolcott v. Lawrence County, 26 Mo. 276; City of St. Louis v. Clemens, Jr., 43 Mo. 404.

“Those who deal with the officers of a corporation must ascertain at their peril, what they will be conclusively presumed to know, that these public agents are acting strictly within the sphere limited and prescribed by law, and outside of which they are utterly powerless to act.” Cheeney v. The Inhabitants of the town of Brookfield, 60 Mo. 84.

The plaintiff is in error in contending that John Dowling was not bound to look to the authority of defendant’s engineer to make the contract in question.

The plaintiff is equally in error in holding that the defendant is estopped from denying the validity of the contract by “having received the benefit of the performance” of it by said John Dowling.

Cheeney v. Brookfield, supra, in which the case of. Alleghaney City v. McClurkan (14 Pa. St. 81), is distinguished from such a case as the case at bar, and the case of Underwood v. Newport Lyceum (5 B. Mon. 130), is disapproved.

3. The plaintiff urges that “the law implies an undertaking by a corporation to pay for labor and materials employed in their service, and of which it has-accepted and is enjoying the benefit.” But the law implies no undertaking upon the part of a city by reason of a contract made by her officers in violation of law. Cheeney v. Town of Brookfield, 60 Mo. 54; Walcott v. Lawrence County, 26 Mo. 277; Johnson v. School District, 67 Mo. 321 ; City of Litchfield v. Ballow, et al., Supreme Court of U. S., April 6th, 1885. Miller, Judge, in delivering the opinion says : “There stands the existing indebtedness to a given amount in relation to the sources of payment, as an impassable obstacle to the creation of any further debt, in any manner, or for any purpose whatever. If this prohibition is worth anything, it is as effectual against the implied as the express promise.”

McDonald v. Mayor (68 N. Y.), in which case Folger, J., speaking for the court, said: “How can it be said that a municipality is liable upon an implied promise, when the very statute which contains its corporate life, and gives it its powers, and prescribes the mode of the exercise of them, says that it shall not, and hence cannot, become liable by any express promise ?”

The judgment of the circuit court is affirmed.

All concur.